Schedule 2 share incentive plan (SIP): Shares that may be awarded: Control by another company
The shares to be awarded must not be in an unlisted company which is under the control of another company unless the other company is listed and not close:
- “Control” for this purpose has the meaning given by Section 719 ITEPA 2003 (see ETASSUM23140).
- “Company” is defined in Section 992 ITA 2007 as any body corporate or unincorporated association but does not include a partnership, a local authority or a local authority association.
- “Close company” has the meaning given by Section 989 of ITA 2007 (see ETASSUM23250).
To determine whether an unlisted company (whose shares are to be eligible shares) is under the control of another company, it is necessary to consider the share holdings, voting rights, and other powers of the companies in the share holding ladder above it.
A company may be under the control of more than one other company, for example it may have an immediate parent company and an ultimate parent company. For the shares of the subsidiary to be used in a Schedule 2 SIP scheme at least one of those “controlling” companies must be listed.
It is not sufficient for the unlisted subsidiary to be under the control of an unlisted company which is owned by a consortium of listed companies, none of which has control.
If a company is controlled by a corporate trustee it will be under the control of another company. The fact that the trust company may be acting in a fiduciary capacity does not mean it will not have control.
If a company is controlled by a limited partnership it may be necessary to look through the limited partnership to the corporate partners to ensure that none of them has the power, on its own, to control the company whose shares are to be eligible shares.
Shares in an unlisted subsidiary of a nationalised industry cannot be used in a Schedule 2 SIP.
Shares in an unlisted subsidiary of a mutual life company cannot be used in a Schedule 2 SIP as Mutual Life companies have no share capital.